Your weekly source for analysis and insight from experts at the Brennan Center for Justice

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The Briefing

While we’re all focused on the president’s illness, it hasn’t reduced the panic that many are feeling about the election. He has, after all, done all he can to undermine the vote and foment chaos, as I describe in Democracy Journal

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. All who care about democracy should be angry — and ready.

It’s terrifying to think about an Election Day full of discord and disinformation, followed by false claims of victory and attempts to swap out electors. But as Wendy Weiser and I write in Politico

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, there are strong safeguards in place, and many ways for our system to block an illegitimate power grab. Here are six of them.

First, presidents don’t run elections. States do. Most of them have quietly, steadily improved the machinery for this highly unusual election. Most have expanded access to absentee voting, strengthened defenses against cyberattacks and other system failures, and made critical adjustments to avoid the problems seen in the primaries.

Second, it’s really hard to steal an election. The nightmare scenarios require outlandish moves by multiple stakeholders all at once to undermine the vote and seize power. More checks are in place than many realize.

Third, even with presidential encouragement, voter intimidation is illegal, and state and local officials have ample power to enforce the law. A federal criminal statute makes clear that “whoever intimidates, threatens, coerces, or attempts to intimidate” someone’s voting faces a year in prison. And state and local laws are even stronger.

Fourth, public expectations of how long the vote might take have already shifted. Trump appears to be betting on the idea that only votes cast on Election Day should count, but a recent poll shows

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that two-thirds of voters do not expect results on election night, making it harder for Trump to incite outrage over a wait. And there may not even be a long wait, as most states begin to process absentee ballots long before Election Day.

Fifth, the system is more prepared than you might think for challenges to vote counting. Election officials and courts are used to challenges and lawsuits. Attorney General William Barr may try to butt in, but there is no legitimate role for the Justice Department during an election contest.

Sixth, even the Electoral College has (a bit) less uncertainty than advertised. The Supreme Court in Bush v. Gore made clear that once a state sets a way to elect a president, it can’t just change its methods after the votes are cast. All 50 states, by the way, elect the president by their state’s popular vote.

The president is not all-powerful, and our institutions and laws are strong enough to prevent a stolen election. In the meantime, we should focus on making sure all eligible Americans vote — and then fight to have all their votes counted.

Democracy

We’re Suing Texas’s Governor Over Absentee Ballot Drop-Off Locations

Yesterday, we filed a lawsuit in Texas state court on behalf of the Anti-Defamation League (Austin, Southwest, and Texoma regions), Common Cause Texas, and an individual Texas voter. Our plaintiffs challenged Gov. Greg Abbott’s proclamation last week that bars local election officials from providing more than one drop-off site for mail-in ballots during the early voting period. His plan will make it unreasonably difficult for Texans to vote by mail, and it goes beyond his authority. “Governor Abbott’s order takes healthy, reasonable, safe options away from some of his state’s most vulnerable voters,” said Myrna Pérez. “It should not stand.” // Read More

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Supreme Court Considers Partisan Balance Requirements for State Courts

This week, the Supreme Court began its 2020 term by hearing arguments in a challenge to Delaware’s constitutional provisions requiring partisan balance on many of the state’s courts. The case could have a far-reaching impact on the systems many states use to pick their judges, as well as on hundreds of government bodies designed to be bipartisan. As Douglas Keith writes, at a time when judicial selection is deeply politicized and faith in government institutions is generally at risk, the Supreme Court should not disrupt a system designed to protect the impartiality of courts. // Read More

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How Citizens United Threatens Judicial Independence

The Supreme Court’s 2010 Citizens United decision led to significantly increased spending in judicial elections, a trend that threatens the integrity and independence of state courts. Thirty-eight states elect their state supreme court justices, and Citizens United prompted a rise in outside spending from special interest groups, increasingly in the form of secretive dark money. “These dynamics have implicated judges in significant conflicts of interest. And the stakes are high,” writes Tim Lau. “State courts hear 95 percent of all cases filed in the United States, including high-profile cases that cover critical civil rights issues ranging from gerrymandering to reproductive justice to the death penalty.” // Read More

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Justice

California’s Referendum to Eliminate Cash Bail, Explained

California voters are considering a referendum on ending cash bail, an unfair system that punishes the poor. Although the elimination of cash bail is appealing, some criminal justice advocates argue that the California plan would give judges nearly unfettered discretion to detain individuals before trial and will exacerbate racial inequities in the justice system. Taryn Merkl and Leily Arzy walk voters through the pros and cons of a complicated decision. // Read More

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Constitution

Biden’s Plan to Roll Back Discriminatory Counterterrorism Policies

For the first time, the 2020 Democratic platform recognizes the toll that security measures have taken on American Muslims, promising to examine, confront, and dismantle the programs, policies, and practices that unfairly target these communities as security threats. In his agenda, Joe Biden has committed to ending the Trump administration’s Targeted Violence and Terrorism Prevention Program and to instructing the Department of Homeland Security to review the processes for putting people on watchlists. Although modest in terms of specifics, writes Faiza Patel, the commitments “signal something of a shift towards recognizing that our counterterrorism laws and policies systematically target and discriminate against some Americans.” // Read More

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TikTok and WeChat Decisions Push Back on Trump Sanctions

For the second time in two weeks, a federal judge has halted President Trump’s sanctions against TikTok and WeChat on free speech grounds. What could explain the judicial pushback in these two cases? It could be the nature of the claims at issue, but it could also be that the judiciary is growing weary of emergency actions that are based on scant evidence, writes Andrew Boyle. // Read More

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Coming Up

VIRTUAL EVENT: Voting and Representation Symposium

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Thursday, October 8 | 12:00–2:30 EDT

Covid-19 has been a “stress test” for our democracy, exacerbating structural racism and inequality in our political system and shining a light on vulnerabilities in our institutions. The second day of this two-day symposium will feature panels including “Fair Representation in an Increasingly Diverse America” and “Building a More Inclusive Democracy.” For lawyers, CLE credit is available. RSVP today

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News

Michael German on white supremacy in law enforcement // News 4 Buffalo

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Sean Morales-Doyle on poll watching // The Hill

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Lawrence Norden on how to avoid a nightmare election scenario // Atlantic

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Myrna Pérez on Trump’s lies during the debate about voting by mail // ABC News

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Michael Waldman on the 2020 election // Dan Abrams Show

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Thomas Wolf on the census timeline // Arizona Daily Independent

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Have an issue you’d like us to cover? Feedback on this newsletter? Email us at [email protected]

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The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize – and when necessary defend – our country’s systems of democracy and justice.

Brennan Center for Justice at NYU School of Law

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New York, NY 10271

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